Lord Dubs: My Lords, perhaps I may come to that point in a moment. It is important and I want to deal with it.

Let me repeat that it is a significant change to give the final responsibility to the Secretary of State and take the final decision away from the commissioners. That makes the Secretary of State responsible.

Lord Tebbit: My Lords, I wonder whether the noble Lord has consulted his noble friend Lord McIntosh of Haringey. Indeed, I wonder whether the noble Lord was in the Chamber the other day when the noble Lord, Lord McIntosh, referred to a matter relating to Scottish education. He said that he could think of no occasion where a Secretary of State bound himself to accept the verdict of an outside group of commissioners. Is this the case the noble Lord, Lord McIntosh, could not think of?

Lord Dubs: My Lords, I was in the Chamber and followed the debate with interest. However, we are not dealing with a comparable instance.

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The discussion the other day related to an independent group of people who would give advice. The question was whether that advice would bind the Secretary of State or whether the Secretary of State might consider it. We are dealing with a completely different situation.

The noble Lord laughs and by his laughter indicates that he knows that this is a different situation and is simply trying it on a bit.

Under this Bill we are giving commissioners specific responsibilities to deal with the release of prisoners. There is no question of their giving advice to the Secretary of State which the Secretary of State will have to accept. The commissioners will act in their own right under the terms set out in the legislation. There is therefore no question of the Secretary of State coming back into the frame. But the amendment would have that result.

As I said earlier, the amendment would make release under the Bill an executive decision and that is not the right way forward.

Lord Campbell of Alloway: My Lords, I take the point being made by the noble Lord and agree with it. But if the commissioners act unreasonably, with bias or improperly, their decisions and their conduct are subject to review by the courts. That is the safeguard. The commissioners are not just left as authoritarian people subject to no control.

Lord Dubs: My Lords, I thank the noble Lord for his intervention; of course he is correct. I do not want to open the doors to a stream of judicial reviews. If the commissioners behave improperly, outside the terms of the legislation or unreasonably, then a different remedy is available. That is not one which lies with the Secretary of State, but one that properly lies with the court.

Noble Lords will be aware that the limits of executive release are tightly drawn under the terms of the European Convention on Human Rights. The European convention requires that decisions that affect the continued removal of the liberty of the subject should in the main be taken by judicial bodies or by bodies that manifest the attributes of the judicial process, including in particular independence from the executive part of the state. The arrangements that are proposed under this Bill have been carefully drawn up to be in accordance with those requirements. It is the view of the Government that the amendment proposed would be at variance with the European Convention.

I turn to the question posed by the noble Lord, Lord Molyneaux. He suggested that the Secretary of State would have access to intelligence information which would not be made available to the commissioners and that that intelligence information would influence her into making a better decision with regard to any specific prisoner release. The argument that the Secretary of State would be better placed to make assessments as to the risk to the public because she is likely to have access to a wider range of information than the commissioners

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is not the case. The Secretary of State may make available to the commissioners any information necessary to assist them in making their determinations.

Under Schedule 2 to the Bill, the Secretary of State may make provision for the protection of sensitive information from disclosure. As such, the commissioners may be given access to intelligence information if that is both appropriate and necessary. I suggest therefore that, while I understand the reason for his anxiety, the point is met by that explanation. The information could be made available by the Secretary of State to the commissioners if necessary for the determination of a specific release decision.

I am concerned that the amendment would be at variance with the European Convention and also that it would take away from the commissioners the ultimate decision and give that decision-making power to the Secretary of State. That is not the right way forward and I hope the House will not accept this amendment.

Lord Cope of Berkeley: My Lords, the Minister seems to have proved, at least to his satisfaction, that the power is devolved to the commissioners. It is still an executive decision; the commissioners are executing the decision. They become the executives instead of the Secretary of State, but it is still an executive-type decision.

Earlier in the afternoon the Minister specifically turned down the suggestion that the chairman of the commissioners should be required to be a lawyer. We did not even propose that the chairman should be a judge. This is not a judicial process; it is an executive process. The Minister proved to my satisfaction that this is an exception to what one might call the "McIntosh doctrine", laid down for us the other day. There are probably a lot more exceptions to it as well, but this certainly seems to be one.

The Minister also suggested that there should be no question of the Secretary of State coming back on a decision after he had just set out a whole list of specific ways in which the Secretary of State could come back to a decision--she could refer it back to the commissioners or stop the whole process and so forth.

In any case, as I said earlier, in the legislation under this agreement in the Republic of Ireland it would appear to be an executive decision totally. The Minister there is to release prisoners under existing executive powers. It is not a court or a judge, but the Minister of Justice who is to release the prisoners. He is advised in that process by a lawyer and two civil servants. They are advisory roles, though they are also independent.

How that squares with the human rights legislation is not a question for the Minister or myself. However, I suggest that it casts a little doubt on his argument. I do not suggest that we pursue this matter and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 [Notice of decisions]:

Lord Dubs moved Amendment No. 12:

Page 6, line 31, leave out ("date") and insert ("day").

On Question, amendment agreed to.

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Clause 12 [Interpretation: prisoners and sentences]:

Lord Cope of Berkeley moved Amendment No. 13:

Page 7, line 7, leave out ("each").

The noble Lord said: My Lords, this is a different class of amendment and a much more detailed matter which the Minister undertook to consider before the Report stage.

Amendment No. 13, together with Amendments Nos. 14 and 15, seek to make the Bill fairer for certain prisoners. Under the Bill, a prisoner with two or more sentences of over five years benefits more than a prisoner with one sentence of five years and one of less than five years. I am interested to know what is the result of the Minister's consideration of this point. I beg to move.

Lord Dubs: Yes, my Lords, I did say that I would reflect further on these amendments after we debated them in Committee. I have reflected further on them, but I am not persuaded. As I said when your Lordships first considered the matter, the effect of the amendments would be to allow the Bill to apply to sentences of less than five years. That has never been the intention of the Government and it would go beyond the terms of the paper placed in the Library on 20th April. But, in addition--this is a telling point--we are not aware of a single prisoner in custody at present who would be likely to benefit were the amendment to be accepted.

Of course, in theory, there might be prisoners who committed their offences before 10th April who have not yet been sentenced and who might therefore be sentenced in such a way that the amendment might have an effect on them. However, at the present time we are not aware of any prisoner in custody who would be affected by the amendment.

For the reason that the amendment goes beyond what the Government have said they will do in respect of prisoners, and because the matter is largely academic anyway, I ask the noble Lord to withdraw the amendment.

Lord Cope of Berkeley: My Lords, I always hesitate to use the word "academic" about any point if it is suggested that what it means is that the point is useless, immaterial or has no practical effect. That does not seem very polite to academics, especially as some distinguished academics are present.

Lord Dubs: My Lords, I would not wish in any way to be offensive to academics. I was using the expression in the sense that it is a theoretical point which would not have any practical application.

Lord Cope of Berkeley: My Lords, there you are: "academic" means theoretical, with no practical application. I do not profess to go along with that; but as this has no practical application--if no prisoners are involved--I beg leave to withdraw the amendment.